Re: Copyright & The New World Economic Order

Responding to Paul Geller, the problem in framing meaningful discussion in large part is defining what the perceived "problem" in the subject area of the discussion is. Is the problem the substance of the law concerning fair use? Is the problem the ease of determining whether certain factual situations fit on one side of the law or the other? Or is the problem the expense and burden of achieving such a determination?

It is tempting but ultimately not useful to conflate these different points by, for example, pointing to the difficulties in achieving judicial resolution of disputes (a problem that has more to do with the civil justice system itself, and involves concerns going far beyond copyright law) as a justification for changing the substance of the law. Systemic efficiency has nothing to do with outcome, although it likely would affect the frequency with which economic actors turn to the system to produce outcomes. As to the ease with which individuals can anticipate outcomes to guide their conduct prospectively, does anyone really imagine that some sort of comprehensive code could be written that would address every conceivable factual situation that can arise in a highly complex and dynamic economy? And that would not be obsolete within months after it was enacted? I'd be curious to know what our brethren in code-based systems have to say about the certainty of application to individual cases.

My second-hand experience suggests that, in many circumstances, individuals face similar uncertainty about the judicial outcome of a dispute concerning their conduct, particularly if no one else has previously engaged in that precise conduct or it is a type of conduct that did not exist when the code was written. To answer the question as to what facts will matter in a determination under our common-law system, we turn to precedent and case law for guidance -- as do courts, and it is surely an exaggeration to suggest that courts arbitrarily decide what facts to rely upon as important in deciding a dispute before them. That's not what they're supposed to do in general or specifically when addressing fair use problems (the statute is intended to give them guidance), so if one thinks they are, that's a different problem, suggesting different solutions.

So I ask: are we debating what should or should not be a fair use, or the quality of the federal judiciary, or the relative merits of different jurisprudential systems and dispute resolution systems? If the latter two, it may be academically enlightening but practically pointless, in my opinion.

Kerry L. Konrad
<k_konrad[_at_]stblaw.com> Received on Thu Jul 15 1999 - 13:57:39 GMT